Forget swarming, it’s our RoEs, and the laws of war that underpin them, that are the problem at least for Amitai Etzioni (http://en.wikipedia.org/wiki/Amitai_Etzioni) in an article written in Military Review, July-August 2009 entitled “Terrorists: Neither Soldiers nor Criminals” (http://www.gwu.edu/~ccps/etzioni/documents/A399%20Terrorists,%20Neither%20Soldiers%20nor%20Cr iminals.pdf). In it Etzioni argues for a revamp of the laws of war as they pertain to a certain class of combatant (i.e., terrorists) and the manner in which they are “prosecuted”. I find many of the issues he raises of great import not only as regards to COIN but in general; such as ...

The media reports with great regularity that American soldiers, bombers, or drones killed “X” number fighters and “Y” number civilians in Afghanistan, Pakistan, or in Iraq. When I read these reports, I wonder how the media can tell who is who.
&

The reasons terrorists cannot be treated as crimi¬nals are equally strong. By far the most important of these, which alone should stop all suggestion of subjecting terrorists to the criminal justice system, is that security requires that the primary goal of dealing with terrorists be preventing attacks rather than prosecuting the perpetrators after the attack has occurred. This is particularly evident when we concern ourselves with terrorists who may acquire weapons of mass destruction. It also holds for many terrorists who are willing to commit suicide during their attack and hence clearly cannot be tried, and who are not going to pay mind to what might be done to them after their assault. Finally, even terror¬ists not bent on committing suicide attacks are often “true believers” who are willing to proceed despite whatever the legal system may throw at them.
&

Under the new suggested rules, the United States and other nations working to prevent terrorist attacks in a contested area, say, the southern region of Afghanistan or an Iraqi city in which security has not been established, would declare the area an armed conflict zone. This would entail warning people that all those who approach troops or their facilities and who seem to pose a threat will be treated accord¬ingly. This could mean, for instance, that in societies like Iraq in which most males carry firearms, people would be advised to either stay out of armed conflict zones or leave their weapons behind.
&

Above all, to demand that civilians who raise their arms against us be treated like non-combatants until they choose to reveal their colours, and to allow them to slip back into this status whenever it helps advance their goals, imposes several costs. The most obvious ones are casualties on our side. Such an approach also generates perverse incentives for nations with conventional armies to circumvent the rules, to find some sub rosa way to deal with combatant civilians. Redefining the rules of armed conflicts is not just a much more effective way, but also a much more legitimate way, of dealing with violent non-state actors.
&

However, when an armed conflict is forced on a people by those who bomb our heartland, killing thousands of innocent civilians working at the their desks, an appropriate response requires dealing with the attackers as ter¬rorists, and not being hobbled by obsolete precepts and rules. The time has come to recognize that those who abuse their civilian status by pretending to be civilians but acting like terrorists forfeit many of the rights of true civilians without acquiring the privileges due to soldiers.
... but as a non-legal specialist I would like to hear the opinions of those better versed that I in matters legal and military. Are our forces hobbled by “4thGW”/”swarming” adversaries or our “outdated” legal concepts? Do we need new rules of war?

Fuchs

04-07-2010, 01:08 PM

By far the most important of these, which alone should stop all suggestion of subjecting terrorists to the criminal justice system, is that security requires that the primary goal of dealing with terrorists be preventing attacks rather than prosecuting the perpetrators after the attack has occurred.

This makes no sense.
The primary point of having criminal investigations is not to punish; it's to prevent later crimes. Prevention is possible against crimes.

J Wolfsberger

04-07-2010, 03:19 PM

The primary point of having criminal investigations is not to punish; it's to prevent later crimes. Prevention is possible against crimes.

Only in the sense that incarceration of a convicted criminal means he's not on the street to commit more crimes. The unfortunate reality of law enforcement is that, at best, police presence can deter the commission of crimes in a particular area within a limited time frame. The far too common universal reality is that police usually arrive after the crime was committed and try to clean up the resulting mess.

One of the goals of any insurgency is delegitimizing the current authorities by demonstrating to the population at large that the government either can't or won't protect them. I suspect that in many societies, according a terrorist caught in the act with such civilized norms as presumption of innocence actually serves to help achieve their goal.

I'm not suggesting that we abandon the rule of law, or the norms for conduct in war evolved over hundreds of years. But we should not be punishing soldiers whose only "crime" was to shoot a terrorist after he'd hidden his weapon, or engaging in witch hunts by second guessing in the luxury of desk bound hindsight whether this or that operation was proper. Tukhachevskii raises a good point in asking "Do we need new rules of war?"

Fuchs

04-07-2010, 04:45 PM

I think there are much, much higher priorities than that.
The Iraq/AFG wars have convinced one Western generation (of politicians again) that war is too messy, expensive and unlikely to yield the desired outcome.

I am a notorious great war guy; my primary concern is to protect the alliance against invasion. An army that can occupy and raze your country is a billion times more threatening than a bunch of criminal ideologues with explosives and guns.

The primary concern should not be the preparation for more wars like the present stupid ones; it should be to catch up with the developments since 1945. We didn't see a great war in two decades and are likely as poorly prepared for one as our ancestors in the 1900's.

THAT should be the primary concern. Maybe catching up yields the insight that radical changes lead to new rules of war.
So far, the cluster munitions ban looks to me a thousand times more relevant to real security problems than the treatment of guerrillero suspects.

The German artillery lost about half of its firepower overnight due to a move from ICM to HE and I haven't even seen an article discussing that we didn't change our artillery branch in response.
Well, I saw one text about that topic, but I was the author. :rolleyes:

jmm99

04-08-2010, 03:02 AM

There is considerable distance between the US and the EU-countries re: the LOAC and ROEs applicable to irregular combatants and to "terrorists" (the dominant EU legal opinion, as I understand it from the Eminent Jurists Panel, regards "terrorists" as solely a law enforcement problem).

I don't see where Etzioni's suggestions will have much traction here; even the current administration seems committed to an LOAC approach to "terrorism" - e.g., Harold Koh's recent remarks and adding Awlawi to the hit list for direct actions.

So far as irregular combatants are concerned, the EU-countries are generally committed to Additional Protocols I & II - and I expect there is considerable support for the "direct participation" requirement advanced by the ICRC. The US attitude toward the "transitory guerrilla" has been negative (which is why AP I & II were not ratified).

One wonders whether, because of the gulf between these basic policies, the US and the EU-countries should refrain from military alliances (such as NATO); and simply co-operate on an ad hoc basis where the mutual benefits far outweigh the policy conflicts.

In any event, what say the Euros (and other non-USAians) re: Etzioni's suggestions being adopted by your own countries.

Regards

Mike

Tukhachevskii

04-08-2010, 10:16 AM

I think there are much, much higher priorities than that.
The Iraq/AFG wars have convinced one Western generation (of politicians again) that war is too messy, expensive and unlikely to yield the desired outcome.

But that's exactly the point! The Vietnam war was just as messy for, IMO, exactly the same reasons, i.e., not our warfighting capabilities but our inability to deploy that capability without hobbling it/tying it to RoE that patently prevent us from accomplishing our mission. The ICM ban is part an parcel of the issue (though Etzioni isn't directly concerned with it). This is not to say that we need to go in guns blazing and impose a "carthaginian" peace upon any and all that would seek to attack us it means realising that the laws of war only apply if the OTHER side adheres to them too. Otherwise we/you are just tying one of your own arms behind your back (like bringing a Knife to a gun fight (www.youtube.com/watch?v=1cdYrBsWhtk)).

As for your geopolitical concerns I share them (like you I too consider myself a "good European" a la Nietzsche) and would prefer to see a purely defensive role for NATO/WEU with situations like 11th Sept handled through long range firepower, putting a strangle hold on the global commons where necessary and supporting proxies in the region: we should have, IMO, let the Northern Alliance get on with it and supported them with fires and allow the region, if necessary (given the region's predisposition toward anarchy), to decend into chaos sucking in Jihadis from all over and tying down Pakistan (which would thereby learn its lesson) and Iran (which would thus become infinately more amenable on other fronts) for decades and deploy the odd SoF unit where and if (METT-T(C)) necessary...but that's my pet peeve

M-A Lagrange

04-09-2010, 06:26 AM

My comment will surprise no one but I feel really unconfortable with the more and more popular idea that "we" do not have to apply GC or any kind of law if the other side doesn't.
Unfortunately, this has more influence that people think. Such approach are not limited to US/EU but find their worst transcription in reallity in the forgotten wars as DRC, Sudan, Colombia...

Obligating ourselves to play by the rules and develop complexe but adaptive solutions are the solution. Not changing the GC or the Law of War.

Never forget that people are watching you. If the best soldiers of the world can kill indiscriminately and their government do what ever they want and impose "dictatorial" laws, then why would or should dictators respect the law and the people?

William F. Owen

04-09-2010, 08:07 AM

If you only apply armed force against the enemy armed force, then you cannot go wrong. Killing is what wins all wars. Until folk snap out of it and ditch the utter twaddle being written, we're all screwed.

Fuchs

04-09-2010, 11:18 AM

You've been focusing on this one facet of war for about a year, where is this fixation coming from?

Killing is merely one ingredient of warfare. Taking prisoners and inciting desertion are perfect substitutes.

Many wars have been lost or won completely independent of kill counts. Alexander didn't conquer the Persian Empire by killing only. He did it by deterring cities from resisting by successfully besieging a few cities. He did it by provoking the death of the enemy emperor and exploiting the disunity of the Satraps. He did it by blending Persian and Hellenic culture and accepting Persian bureaucrats and customs in order to make the empire controllable.
It was completely irrelevant how many troops he killed in battle.
Look at Alexander's battles; he didn't even attempt to kill the enemy army. He attempted to capture their leader, provoked his retreat and thus broke the will of the enemy army.
(Yes, he killed many rebels later, but that doesn't invalidate the earlier strategic success that was not based on mere killing.)

17th and 18th century Wars in Europe weren't much about killing either. Armies lost almost without exception more men both to desertion and illness than to violence.

Hellenic polis wars weren't much about killing either. It's absolutely possible that there were a couple such wars without any KIA.

The quick Prussian campaign to capture some continental territory of Sweden in the 18th century was highly successful and didn't require a single KIA (maybe there were KIA, but that was entirely irrelevant to the outcome).

In fact, the combination of great manpower pool coupled with low intensity pretty much dictates that killing is bound to be irrelevant because losses can be compensated for.

Look at WW2. The decisive factor for allied success was not killing. The decisive factor was overpowering. Germany had more aircraft, more tanks, more subs, more artillery in service than in late 1939. Its personnel strength was also almost the same. It killed (and captured) never heard-of quantities of enemy soldiers and still lost.

Your fixation on killing also ignores that you're in great part talking about conflicts where the enemy has enough initiative to define the intensity of warfighting himself.
You may increase killing, he will decrease warfighting to a new sustainable level. The efforts to kill more men per fight would merely lead to less fighting.
To kill more per fight is simply not a decisive effort in many circumstances.

This fixation on killing serves no good purpose. It neglects the many other important things in war and ignores the many other ways to victory.

Killing "wins all wars" as much as eating breakfast. Both is part of it, neither is more or less crucial.

You haven't found a magical "I win" button in "killing enemies".

Firn

04-09-2010, 11:54 AM

....

One wonders whether, because of the gulf between these basic policies, the US and the EU-countries should refrain from military alliances (such as NATO); and simply co-operate on an ad hoc basis where the mutual benefits far outweigh the policy conflicts.

....

Regards

Mike

The argument is indeed interesting and well presented. Sorry that I just focus on the small excerpt but I find it a bit surprising to question the values of a military alliance on the basis of possibly even large squabbles concerning the legal status of enemy fighters encountered in conflicts which are not in the vital interests of their members.

Note that the political, legal and factual influences of long-term military (political) alliances, in this case NATO are considerable and clearly distinct from temporary ad-hoc cooperations.

Regards

Firn

William F. Owen

04-09-2010, 01:31 PM

You've been focusing on this one facet of war for about a year, where is this fixation coming from?

Killing is merely one ingredient of warfare. Taking prisoners and inciting desertion are perfect substitutes.
It's not a fixation. Its merely a statement of my truth. War is killing for political purpose. No killing, no war. When it really matters, what breaks will is killing and destruction.

It's nothing do with how many you kill. You may loose more than the enemy. It's about breaking his will. That means killing or at least threatening to kill.

This fixation on killing serves no good purpose. It neglects the many other important things in war and ignores the many other ways to victory.
Then don't teach it. You'll win many supporters from the modern and future US and UK armies, as well as Oprah Winfrey and the adherents to the late Princess Diana.

I'll teach or profess that war is killing for political gain. Focus on killing the right people, and you'll deliver the policy within the limits of military force. If you know something better, I'm listening.

Killing "wins all wars" as much as eating breakfast. Both is part of it, neither is more or less crucial.

You haven't found a magical "I win" button in "killing enemies".
The "win button" the breaking of the enemies will. That is almost always derivations or degrees of annihilation and/or exhaustion. The only think that delivers that is killing, or actions that make folks fear death - seeing others killed!

Tukhachevskii

04-09-2010, 01:53 PM

... take the case of Indiscriminate Violence as a Counterinsurgency Strategy ( http://www.duke.edu/~downes/DOWNES_DRAININGSEA_UPDATED.pdf). Would it not be ethically more desirable to use overwhelming force to establish order than a long drawn out conflict in which, quantitatively speaking, more people die? According the author of the article (pm me for a copy if you can’t access site) indiscriminate violence has its uses even though it may be against the laws of war and in very specific cases (let’s be clear I am not advocating genocide or massacre as a tool of war but merely initiating a rhetorical exercise to fuel the debate/think outside the box);

There exist several conditions under which indiscriminate victimization of civilians fulfils this interdiction/denial function. First, indiscriminate violence is more effective the smaller the underlying civilian population. Why, for example, was the indiscriminate violence employed by the British Army in South Africa so effective at defeating the Boer insurgency, whereas German victimization of non-combatants in the Soviet Union backfired and increased the size and strength of the partisans? One answer is that indiscriminate violence is more effective when the civilian population that the insurgents draw their support from is small[...]The smaller the population, therefore, the more plausible it is to kill or completely isolate it, and thus the more effective large-scale civilian victimization can be.

Second, indiscriminate violence in guerrilla wars is likely to be more effective the smaller the size of the geographic area comprising the theatre of battle. The logic is simple: If people have nowhere to run, then it is easier to hunt them down and kill or intern them. [...] It also helped that the population in question only consisted of about 100,000 people. Similarly, in the Philippines (1899–1902), American troops relied on concentration camps to dry up the water in which the Filipino insurgents were swimming, a task aided in no small measure by the fact that the fighting occurred on small, isolated islands.

Third, indiscriminate violence is more likely to be effective – or less likely to backfire – when the insurgency is denied sanctuary and is cut off from external sources of supply. Population concentration and/or large-scale killing is best conceived of as a brutal method of ‘draining the sea,’ preventing the insurgents from obtaining need supplies from civilians. If the rebels have sanctuary across a border in another state, or an open supply line from a third party, draining the domestic sea can only partially sever the insurgents’ ability to obtain supplies and continue to fight. [...].

Finally, indiscriminate violence is likely to be more effective than selective violence when the population is solidly committed to the insurgents’ cause[my emphasis]. Kalyvas argues that all civilians – no matter what their prior ideological commitments, if any – give their support to the actor whose coercive threats are most credible [my emphasis], that is, the actor who controls the area militarily. Yet we know this to be untrue empirically, at least in some cases.[...] When a group of civilians is strongly committed by virtue of ethnicity or ideology to an insurgency, targeted violence may be insufficient to deter it from supporting the guerrillas. Indeed, selective violence may only infuriate group members and make them more determined to resist. In such situations, rare though they may be, massive applications of violence in support of a strategy of rendering the group incapable of supporting the insurgents might prove more effective.[my emphasis] Indiscriminate violence against civilians can be effective in defeating guerrilla insurgencies under certain – relatively restrictive – conditions[my emphasis]. When the population from which the guerrillas draw support is relatively small, the land area in which the insurgents operate is similarly constricted, and external sanctuary and supply is not available, governments have been able to strangle rebel movements with indiscriminate violence. [...] Killing (or imprisoning) the population is not the only way – and certainly not the most desirable way from a normative point of view – to defeat a guerrilla insurgency. Targeted violence, as noted above, is more efficacious in circumstances where the incumbent is not able to control the whole population physically. Less violent methods can also be successful when an insurgency is very weak. (culled from pp.438-440)

...risks driving members of the population towards the insurgency inadvertently, playing to
the population’s hearts and minds may avoid the negative externalities associated with targeting insurgents. [...] The model, however, also predicts that where counterinsurgents face highly committed members of the population, either strategy may be ineffectual.[my emphasis] (p.396).

Of course, hearts and minds campaigns assume we all value and desire the same things.

Imagine, following Etzioni’s suggestion above, that ...

the United States and other nations working to prevent terrorist attacks in a contested area, say, the southern region of Afghanistan or an Iraqi city in which security has not been established, would declare the area an armed conflict zone. This would entail warning people that all those who approach troops or their facilities and who seem to pose a threat will be treated accord¬ingly. This could mean, for instance, that in societies like Iraq in which most males carry firearms, people would be advised to either stay out of armed conflict zones or leave their weapons behind.(p.115)
...set up free fire zones and curfews (for an extreme example) say in Helmand and realised public information that anyone caught even conversing with someone who looks remotely like a Talib is set to meet their maker but who informs the authorities on enemy positions will receive regular food, medicine and money (thus turning them into collaborators; a strong incentive to keep supplying HUMINT). How much of an impact would that make? Rather than using RoEs which state that when a fighter lays down his weapon he reverts to civilian status and can even go, cap in hand, to the aid station he was just assaulting and demand food and medical care wouldn’t it make more sense, for instance (and playing devil’s advocate again) to say that they do not revert to civilian status; wouldn’t that stop them picking up the rifle in the first place? (deterrence)

And yes, of course, I understand that waging war and politics according to the rule of law is what defines us a civilised beings and makes our cause just but although it plays well at home I don’t think that matters to the enemy. I am sure that the grieving parents of men and women killed in action find no comfort in the fact that their sons and daughters were killed unfairly in an unfair fight (and that’s precisely what the European humanist laws of war were supposed to ensure against). Ultimately, it’s what the enemy thinks that’s important in a war; if he thinks he can get around you at every turn he is more likely to want to. Fear is a powerful force and the more fearful the enemy gets the more likely he is of bowing out while still breathing. Like teenage ruffians guerrillas will keep “trying it on” safe in the knowledge that it is now unlawful to cane a kid and that they will simply slip through the social security/international humanitarian safety net and carry on doing whatever it is they are doing. Yes, caning will not deter everyone but what better method of identifying the hard core from their hangers-on. Essentially our message should be “we’ll start playing by the rules when you do; until then the gloves are off”. It sounds like a neo-colonial paternalistic argument but it’s the one I think most fits the peace-keeping/state-building/civilising mission our forces are currently on (Liberals may call it by different names but that’s essentially what it is). Preventing us from acting and thinking outside the (legal) box is what enables our opponents to box us in and use our laws of war against us.

Again, I’m being devil’s advocate here...

M-A Lagrange

04-09-2010, 01:55 PM

In any event, what say the Euros (and other non-USAians) re: Etzioni's suggestions being adopted by your own countries.

Mike,

I do not know how much this will respond to your question:
In France, terrorist act or incident are under the anti terrorist police which may use, to some extend, military power. It's a civil judge who is in charge.
Now, when it comes to the response to a terrorist act, especially a hostage crises, we do have 2 main forces: RAID (Police) and GIGN (Gendarmerie).
As far as I understand, RAID is in charge of "civil" hostage crises and GIGN of "international" hostage crises.
The distinction can be difficult some times, like in the case of a terrorist group who was apprehended because they did conduct banditry (bank robbery) acts in Roubai.
In the case of terrorist groups like ETA or in Corsica, it is the military who are in charge through the gendarmerie.
But (and it's were it comes fuzzy), this because police was seen as a urban force and gendarmerie a countryside force. Nowadays they are merging, s it will soon change.

Now, we are merging police and gendarmerie. And GIGN and RAID are conducting combined exercises. Especially in the case of Bombay like scenarios... Such terrorist, hostage crises are interresting because it is really difficult to clearly define under which juridiction they are placed.
My personnal interpretation, based on the Somaly anti pirates actions are that during the operation, what would prime are the "war" laws and practices (respect of GC...).
But once the operation is over, civilian legal frame is applied.

M-A

M-A Lagrange

04-09-2010, 02:11 PM

Essentially our message should be “we’ll start playing by the rules when you do; until then the gloves are off”. It sounds like a neo-colonial paternalistic argument but it’s the one I think most fits the peace-keeping/state-building/civilising mission our forces are currently on (Liberals may call it by different names but that’s essentially what it is). Preventing us from acting and thinking outside the (legal) box is what enables our opponents to box us in and use our laws of war against us.

I disagree, sorry, just can't agree. Even if I can see the rational behind.

It's no confort to know that a KIA was killed in an unfair manner in an unfair fight but it does not gives the right to not follow the rules.
It's just like saying: if bandits do not follow the law then police should not respect the law.
It's always the same issue all the time. Your opponent is not playing fairly then you have to adapt and win despite playing fairly. May be frustrating but not rethorical.

Even if I do not agree with Wilf at 100%: more you kill fairly opponent and specialy their heads, more you win.

And finally, civilian population will always go with the one that is the most efficient to destroy it's ennemy: yes. But indiscriminate use of violence will just allienate population against you.
Enforcement of State and law with civilians going to jail for ennemy support can be more productive and as deterant than violence. If you kill and torture: then people will just hate you and take more risk to desroy you. See WW2, tchetechenia... for examples, indiscriminate use of force did not work out so good.

M-A

Tukhachevskii

04-09-2010, 02:43 PM

I disagree, sorry, just can't agree. Even if I can see the rational behind.

if bandits do not follow the law then police should not respect the law.

M-A

Sir,

I agree with you and your sentiments. My problem is in using domestic analogies and applying them to internal politics (yes, I'm a realist). Bandits are breaking a law that already exists for which a domestic authority (Austin's theory of Command here) exists and for which the police is acting as a legitimate enforcement authority. Situations like that don't exist in places like Afghanistan. Even though we may be aiding the state it is still a state we crated and thus lacks the kind of legitimacy that legal systems rely on...nonetheless, as I said I was playing devil's advocate and I too, though seeing the rationale, balk at the consequences.

Fuchs

04-09-2010, 06:30 PM

It's not a fixation. Its merely a statement of my truth. War is killing for political purpose. No killing, no war. When it really matters, what breaks will is killing and destruction.

It's nothing do with how many you kill. You may loose more than the enemy. It's about breaking his will. That means killing or at least threatening to kill.

We won't agree that war is merely killing or political purpose. That's just one facet of war, and to focus on it means to (be) mislead.

I recall someone who had a quite annoying insistence on empirical evidence. I think you won't be able to meet his expectations for empirical evidence to support your position.

We can agree that the threat of death is one of the great motivators in wartime, usually the primary mechanism of breaking will.

It's not useful to focus on killing only, though.

* Death (especially the own one) is not always the greatest threat. This ranges from Vikings to Kamikaze to Jihadist wannabe martyrs.

* Overwhelming power is a more disillusioning argument than mere killing. Overwhelming power brought down military powers that proved able to stand the death of hundred thousands or millions of own men.
A focus on killing would fail to appreciate the importance of allies.

* Sieges, blockades and pockets have a track record of being able to break will without significant killing (or destruction).

* War is not always about winning. Sometimes it's simply about averting defeat or minimizing the damage of inevitable defeat. Only aggressors who can expect to be superior could make good use of a "kill! kill! kill!" approach to warfare. Other war parties have often a vested interest in cooling down the war and minimizing the intensity.

* Destruction can be counterproductive to the intent of breaking the enemy's will. The more you destroy, the less the enemy can lose.
Imagine you destroy all buildings of an enemy nation on day one of the war. The enemy would be freed of the fear to lose infrastructure.

Killing is furthermore not the only method of building up overwhelming power or the ability to lay siege, blockade or create a pocket. Many other factors come into play - some of them not even about interaction with the enemy.

Oh, and I just recall someone who kept insisting that all war is complex. I wonder what he say about a simplistic war is about killing statement.

Firn

04-09-2010, 07:13 PM

I always liked the approach of CvC (Book 1, Chapter 2):

The decision by arms (or killing for Wilf) is, for all operations in war, great and small, what cash payment is in bill transactions. However remote from each other these relations, however seldom the realisation may take place, still it can never entirely fail to occur.

...

We have seen, therefore, in the foregoing reflections, that there are many ways to the aim, that is, to the attainment of the political object; but that the only means is the combat, and that consequently everything is subject to a supreme law: which is the decision by arms; that where this is really demanded by one, it is a redress which cannot be refused by the other; that, therefore, a belligerent who takes any other way must make sure that his opponent will not take this means of redress, or his cause may be lost in that supreme court; that, therefore, in short, the destruction of the enemy's armed force amongst all the objects which can be pursued in war appears always as that one which overrules all.

Differences in approach to the legal status of various combatant and non-combatant types are only some of the issues concerning NATO, the EU and the US. For example, where do NATO and the US fit into the trigger mechanism provided by Article 42 of the Treaty of Lisbon (http://en.wikipedia.org/wiki/Lisbon_treaty) (see also official site (http://europa.eu/lisbon_treaty/index_en.htm)), specifically sub-para 7:

Article 42:

(JMM Note: sub-paras 1-6 should also be read and can be downloaded from this Europa webpage (http://europa.eu/lisbon_treaty/full_text/index_en.htm).)

7. If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.

Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.

It appears to me that, from a long-term EU-countries' standpoint, NATO will be something of a transitory collective defense concept for "certain" EU members. Once a common EU defense system is put in place, any rationale for NATO would seem to be gone.

?? Where would the US fit into an EU common defense system - which, if truly "common", would require definitive international humantarian law (what the ICRC prefers over laws of armed conflict or laws of war) and rules of engagement binding on all participants.

?? If Astan since 2002 is the guiding example of US-EU "coalitioning", do either the EU or US want to commit to future unknown armed conflicts under a trigger mechanism such as sub-para 7, Article 42 of Lisbon.

Regards

Mike

William F. Owen

04-10-2010, 06:08 AM

We won't agree that war is merely killing or political purpose. That's just one facet of war, and to focus on it means to (be) mislead.

I recall someone who had a quite annoying insistence on empirical evidence. I think you won't be able to meet his expectations for empirical evidence to support your position.

We can agree that the threat of death is one of the great motivators in wartime, usually the primary mechanism of breaking will.

As concerns evidence, name me one decisive battle that saw little or no killing. Sieges can be one of the bloodiest forms of warfare.
Killing and destruction - or threat of- is the primary mechanism of breaking will. I do not just focus on it. Most armies focus on it.

Focussing on Killing is not simplistic or simple. You have to kill the right people, in the right place at the right time. Want to "protect the population?" Kill the enemy! Want to deter an invader? Kill them.

Killing without being killed is extremely complicated and complex. - which is why folks want to find easier ways of winning wars - and never have.

Fuchs

04-10-2010, 10:59 AM

You don't confuse "war" and "battle", do you?

It'll be difficult to find battles with little killing in history books because "much killing" is pretty much the historian's definition of a battle.
I recall a late Western Roman battle with less than 300 Roman KIA and not terribly much barbarian KIA, though. Just can't name it now. The battle was decisive in the war with losses of less than 5%.

Another Roman example might be more useful; Caesar did not fight all Gaul armies that faced his. Sometimes he simply avoided a battle and waited till the superior enemy army disintegrated due to inferior logistics. He defeated and discouraged several tribes like that.

There were also wars in the 18th century without any battle. The Austrians had a Marshal who followed the indirect approach of maneuvering the enemy out of the lad he was meant to occupy. He threatened the lines of communication and made the enemy's position in the contested territory untenable.

The German invasion of Denmark in 1940 killed less than a hundred Danes and was the quickest war ever (officially no war, though).

The German-Bulgarian invasion of Yugoslavia was finished in a mere 11 days, won by preventing a mobilisation and keeping the Yugoslavians from organising a defence. One motorised infantry regiment moving through the whole of Yugoslavia at the tip of the spear and had not a single KIA.

William F. Owen

04-10-2010, 01:10 PM

You don't confuse "war" and "battle", do you?
No I do not. I am less pedantic when it comes to "battle" and "warfare."

Another Roman example might be more useful; Caesar did not fight all Gaul armies that faced his. Sometimes he simply avoided a battle and waited till the superior enemy army disintegrated due to inferior logistics. He defeated and discouraged several tribes like that.
And? What about the famous "battle" of Worcester in 1405, where the English forces the Welsh to quit the field, without anyone being killed.

What many ignore was that only occurred because the English had the ability to kill the Welsh if the Welsh tried to attack, and the English didn't need to attack the Welsh - again, so what?

The German invasion of Denmark in 1940 killed less than a hundred Danes and was the quickest war ever (officially no war, though).
So the Danes quit without a fight? Why? Because if they didn't the Germans would have basically killed more than they could stand.

You win by being focussed on killing. Very rarely you may not have to kill. So what? I am as dismissive as Clausewitz and Foch of the idea you can reliably win any armed conflict without visiting very sever harm or threat there of, upon the enemy.

Fuchs

04-10-2010, 04:28 PM

That assertion doesn't stand up to historical tests, though.

The focus on killing and lethality blinds you for other options.
* political
* quick strikes that drastically reduce the prospects of continued resistance before major fighting begins
* taking away the economic base for the war effort
just to name a few.

It's not even helpful for the understanding of the instances when armies were simply overpowered because it guides the attention towards the fighting itself.

You do not always win by focusing on killing, and it's not even always the best route. In fact, sometimes the best path in war isn't even to strive for victory.

The 1940 France campaign was certainly one of the best ever and it wasn't focused on killing at all. In fact, the winners would have been highly content if they had been able to pull off the first phase with much less violence.
The victory came through overwhelming power achieved by degrading the logistical support of a great part of the enemy to almost zero.
Killing was uninteresting. Those who were in pursuit of killing and lethality failed badly. They marched forward for a meeting engagement and ran into a trap.

The focus on killing and lethality is primitive, simplistic and misleading.

Someone who goes directly for the kill (because he focuses on the same) will way too often enter a trap laid by a smarter, more versatile enemy.
There's a reason why wars aren't short and made up of one or few quick battles only. Military strategy and operational art need to strive for much more than mere killing - a focus on it would dumb both down and lead to failure unless the strength ratio was very favourable from the beginning.

Sure, killing and lethality make up a big chunk of warfare, but they're nevertheless merely two instruments of the orchestra and overemphasizing them leads to a poor performance.

William F. Owen

04-11-2010, 04:18 AM

The focus on killing and lethality blinds you for other options.
Wrong. It does not. I am not stupid.

* political That's politics. Not warfare.

* quick strikes that drastically reduce the prospects of continued resistance before major fighting begins Clever killing and destruction is always good.

* taking away the economic base for the war effort
just to name a few. ...and? Do you mean attacking economic targets via military means?

The focus on killing and lethality is primitive, simplistic and misleading.

No it is not. Any focus on killing for killing's sake is stupid. That is not what I am talking about.

I am talking about killing as being instrumental. I am not suggesting you seek engagements irrelevant to the strategic purpose. You do not get to conduct envelopment's and encirclements unless you have real combat power, and the aim of such manoeuvre should be destroy the enemy. If the enemy gives up before you do that, then great.

My focus is on breaking will. The best way to that is to kill and destroy. If you are very violent and shocking, you may have to kill very few folks to gain your political end state.

The huge fallacies at the heart of MW, EBO and Liddell-Harts almost criminally stupid "indirect approach" is the idea that you should seek to avoid battle and not the verity that the aim is to seek battle under the most advantageous conditions and reap high Loss-exchange-ratios.

It appears to me that, from a long-term EU-countries' standpoint, NATO will be something of a transitory collective defense concept for "certain" EU members. Once a common EU defense system is put in place, any rationale for NATO would seem to be gone.

?? Where would the US fit into an EU common defense system - which, if truly "common", would require definitive international humantarian law (what the ICRC prefers over laws of armed conflict or laws of war) and rules of engagement binding on all participants.

?? If Astan since 2002 is the guiding example of US-EU "coalitioning", do either the EU or US want to commit to future unknown armed conflicts under a trigger mechanism such as sub-para 7, Article 42 of Lisbon.

Regards

Mike

I think you touched a lot of sensitive and important points for which there is no true or definitive answer and things are very much in motion on that one, as can be expected when so many interests are involved.

Perhaps this should be discussed in a seperate thread, as there is much to be said.

Firn

davidbfpo

04-11-2010, 10:31 AM

Firn,

On a quick skim just I'd say the differences between the US & European (EU) approach legally to LOAC etc can stay here. Perhaps the thread title needs amending slightly to reflect the discussion so far?

If others support your suggestion I will start a new thread.

Wargames Mark

04-11-2010, 03:51 PM

Above all, to demand that civilians who raise their arms against us be treated like non-combatants until they choose to reveal their colours, and to allow them to slip back into this status whenever it helps advance their goals, imposes several costs. The most obvious ones are casualties on our side. Such an approach also generates perverse incentives for nations with conventional armies to circumvent the rules, to find some sub rosa way to deal with combatant civilians. Redefining the rules of armed conflicts is not just a much more effective way, but also a much more legitimate way, of dealing with violent non-state actors.

See Training America's Strategic Corporals (http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA494756&Location=U2&doc=GetTRDoc.pdf) for a good answer to this. Here is a relevant part:

There are also recurring misunderstandings by many service members and judge advocates concerning the level and degree of authority needed to engage lawful targets. This misunderstanding and confusion leads to the mistaken belief that the actual status of an individual shot in self-defense must first be ascertained. Too often, warriors are briefed that they must have “PID” (positive identification) before engaging. Such ill-founded beliefs are perpetuated by the repeated use of criminally-focused investigations into what are, in essence, line-of-duty shooting decisions.

There are two – sometimes distinct – manners by which a military member can lawfully employ deadly force: (1) subject to a target being declared hostile by competent authority or (2) in response to a demonstrated hostile intent or hostile act (intended to inflict death or serious bodily injury to self or friendly forces). Against a declared hostile, once PID is established, then there is no legal obligation to detain, capture or otherwise take less intrusive means. By way of example, a Soldier could walk into a barracks room filled with sleeping enemy combatants who have been declared hostile and shoot them. There is no legal obligation to wake them, capture them or make it a “fair” fight. By direct analogy, if a tactical operations center can lawfully drop a 2,000 lb laser-guided bomb on that barracks room (subject to collateral damage and proportionality analysis), then it is axiomatic that a lone Soldier could kill them with his M-4. For some reason, however, when some judge advocates and commanders review these close-in killing situations, they mistakenly analyze them under a self-defense methodology as set forth below. In matters of individual or unit self-defense, as spelled out in the unclassified portions of the Standing Rules of Engagement (SROE) and Standing Rules for the Use of Force (SRUF) for U.S. Forces30, service members possess an inherent right of selfdefense predicated solely on a reasonable response to a demonstrated hostile intent or hostile act (intended to inflict death or serious bodily injury to self or friendly forces). In self-defense situations, PID is irrelevant and proportionality is rarely an issue. Soldiers need to understand that they can use reasonable force to quell such a threat until that threat is over.

[...]

Some commanders have been reluctant to authorize the shooting of insurgents clearly emplacing IEDs in roadways late at night. They have prevented the targeting of insurgents conducting probes of friendly positions; and, have also failed to authorize the kinetic engagement of clearly identified hostile vehicles speeding away from a mortar “point of origin” as they “were not a threat at the time of acquisition.” This last point is important to clarify; some less tactically aware judge advocates and commanders have opined that “fleeing hostile actors can’t be engaged.” To so state ignores both the tactical concept of pursuit as well as the hard reality that such a fleeing subject continues to be a threat. To put it even more bluntly: nothing in the law allows a hostile actor to fire a weapon at coalition forces, then drop the weapon and flee without fear of being targeted and killed. Even in civilian law enforcement settings, such fleeing hostile actors are well-recognized as a continuing threat that may be engaged.

All in all, my thinking is that the entire idea of a law of war as an international legal tool is ridiculous to begin with. Only the victors can really apply law of war. I think that it makes sense on a national level, to require one's own personnel to act in accordance with their nationally-accepted standards for conduct in war. But it can't really go beyond that. War is enforcing will by organized violence. In the end, a nation or group does what they think they need to do to win. National survival trumps everything.

However, it is important that societal standards of morality in war be applied to one's own troops. Otherwise, (especially in a media-saturated world), the public support for a given war effort will be sapped. This brings up the sources of ROE:

Law
Policy
Operational Considerations

People, especially civilians, don't often recognize the operational considerations element in the basis for ROE. There are use of force situations one can come up with in which the force used is clearly legitimate under LOW, but unwise from a METT-TC standpoint. People voice lots of frustration over guidance that tells troops not to strike back at an enemy who is using a populated place as a shield. However, if you are conducting COIN, then I think that's the nature of the beast. My understanding (from a clean, safe living room here in the states) is that combat leaders must think in terms of the capabilities of their entire organization, and of the war, not just the battle. Nothing should stop troops from defending themselves, but beyond suppressing an immediate threat, do you really want to try and clear complex, urban terrain of populated town to try and destroy an enemy element when the enemy has chosen this time and this place for this fight? Is there a big-picture way to develop this situation that won't involve playing out the scene the way the enemy has scripted it?

At this point, you are outside of what's legal and into what makes sense (notice how those are two separate categories :)).

Use warriors, not lawyers.

Firn

04-11-2010, 06:59 PM

Firn,

On a quick skim just I'd say the differences between the US & European (EU) approach legally to LOAC etc can stay here. Perhaps the thread title needs amending slightly to reflect the discussion so far?

If others support your suggestion I will start a new thread.

This should work out well enough here, we just have to try to limit it a bit.

I'm not sure why you think JA's add a PID component to self-defense. I'm not aware of any case this decade where a SM was court-martialed on such basis.

ROEs can and do reflect considerations beyond the LOAC. Certainly one could dispute the efficacy or need for certain limitations; but that's not a discussion we can have in an open forum. But I'm not aware of any such limitations being based upon misstatements of the LOAC.